Kevin Steeves joins EIN as its first Director

Kevin Steeves

Kevin Steeves

EIN is pleased to announce the appointment of Kevin Steeves as Director.

Kevin joins EIN after having served for three years as head of the Director’s Office at Chatham House, the Royal Institute of International Affairs in London. At Chatham House he supported the Director in the development of new initiatives and led the institute’s front office.

Kevin has extensive experience of international institutions, having worked a number of years for the OSCE in South-eastern Europe in the fields of democratisation and human rights promotion; and at the UN Secretariat in New York in the Office of Rule of Law and Security Institutions, Department of Peacekeeping Operations. While with the UN, he was involved as a special assistant and policy officer in a number of UN initiatives, including the creation of the UN Global Focal Point for Police, Justice and Corrections. Kevin was also fellow in the Conflict Research Unit at the Netherlands Institute of International Relations ‘Clingendadel’ in The Hague, where he worked on the topics of rule of law and security sector reform. He provided advice to the Dutch Ministry of Foreign Affairs and led an evaluation of the European Gendarmerie Force.

“Kevin Steeves’ appointment is an important early milestone in EIN’s development. His international experience in developing new initiatives and generating new ideas in the face of various challenges will serve EIN well. We look forward to working with him in the development of EIN into a highly effective and impactful organisation committed to supporting the full, consistent and effective implementation of European Court judgments”, said EIN Chair, Başak Çali.

Kevin Steeves said: “I am delighted to be joining EIN and look forward to working with the EIN Board and Bureau in the development of our civil society network. The EIN mission to promote and support implementation of judgments of the European Court of Human Rights is particularly important at this complex time in international and European affairs. I am excited about the opportunities that exist to bring the strengths and capacities of EIN members and partners to bear in support of the promotion and protection of human rights.”

Principled Resistance against ECtHR Judgments – a New Paradigm?

By Anne-Katrin Speck, Research Associate, Human Rights Law Implementation Project, Middlesex University London, School of Law

Photo credit: University of Konstanz 

Photo credit: University of Konstanz 

EIN founding member and Vice President Professor Philip Leach (Middlesex University London) participated in a Conference entitled ‘Principled Resistance against ECtHR Judgments – a New Paradigm?’, which took place at the University of Konstanz (Germany) on 1-2 June 2017. The Conference provided a forum to discuss certain states’ refusal, notably by reference to national (constitutional) law, to abide by the judgments of the European Court of Human Rights (ECtHR).

Two general presentations, country reports on Germany, Italy, Switzerland, the United Kingdom and Russia, two speeches presenting the ‘view from Strasbourg’, a concluding roundtable discussion and intense discussions raised a number of issues of interest to EIN.

Grounds for resistance

Several speakers suggested a typology of grounds invoked by domestic actors – principally national courts, but also political, academic and media actors – for justifying non- (or partial) implementation. Among the reasons identified for why criticism of the Strasbourg Court had surfaced were:

  • the claim that the ECtHR had overstepped the boundaries of justified evolutive interpretation;
  • a perceived failure on the part of the Court to respect the principle of subsidiarity;
  • alleged shortcomings in the ECtHR’s way of establishing the facts of a case;
  • reasons related to the Court’s legitimacy and authority;
  • policy makers seeing human rights as an impediment to making policies;
  • the emphasis put on the counter-majoritarian dynamics of human rights;
  • the vagueness of human rights norms, which is seen as creating a risk for judicial interpretation unduly interfering with politics;
  • the ‘foreignness’ of the Court, resulting in both a lack of ‘ownership’ of (international) human rights commitments and in viewing Strasbourg as a threat to national sovereignty; and
  • an alleged lack, in some judgments of the ECtHR, of convincing reasoning.

Most speakers explicitly challenged the validity of most of these criticisms, and there was agreement that these could not be valid justifications for non-compliance.

Has this criticism translated into 'principled' or 'reasoned resistance'?

Participants observed that instances of outright rejection of an ECtHR judgment were very rare – the infamous prisoner voting saga being perhaps the clearest example of ‘principled resistance’ (though not by all UK actors). Even the Russian Constitutional Court’s (RCC) decision declaring the OAO Neftyanaya Kompaniya Yukos judgment on just satisfaction impossible to execute was not seen as a stand-out example of ‘principled resistance’ and it was noted that, quite remarkably, the RCC had not challenged the ECtHR’s ruling on the merits (instead, it had referred to the element of Russia being a country in transition to justify non-execution of the just satisfaction judgment).

Interesting parallels can be drawn between the techniques devised by the courts and legislatures of the states analysed to depart from the Strasbourg Court’s case law. The highest courts of the UK, Italy and Russia, for instance, were all found to make a distinction, though in varying forms, between well-established ECtHR case law (which ought to be followed) and non-established case law (which merely needs to be taken into account). Challenges to the binding force of ECtHR challenges moreover appeared to stem from the sub-constitutional rank of the Convention in some Contracting States’ legal orders.

Many more examples of judicial ‘reluctance’ to follow Strasbourg jurisprudence were discussed, among them cases concerning visitation rights of life prisoners (Khoroshenko v Russia); the balancing of freedom of expression and the right to respect for private life (the Von Hannover cases against Germany); the use of hearsay evidence in criminal trials (the Al-Khawaja and Tahery cases against the UK); and political advertising on TV (the Verein gegen Tierfabriken cases against Switzerland). In all of these instances, reconciliation of conflicting domestic and international provisions or interpretations was ultimately possible, leading the experts to conclude that these instances of criticism could most accurately be construed as genuine engagement of states with the Strasbourg system. Such ‘reasoned resistance’ provided a welcome opportunity for dialogue capable of strengthening the legitimacy and authority of the Court.

How can the tension be overcome?

This dialogue was identified as a crucial means to accommodate the inherent tension between international obligations and national (constitutional) law invoked as justification for non-implementation.

Judge Nußberger pointed to a number of legal tools used in the ECtHR’s decision-making process to accommodate criticism directed at the Court, notably (i) the margin of appreciation doctrine; (ii) transparency of the decision-making process by allowing for dissenting opinions; (iii) the possibility of self-correction (in Grand Chamber judgments); (iv) third party interventions; (v) adaptation and change of jurisprudence; and (vi) the adoption, within limits,  of a deferential approach.                  

Professor Nollkaemper (University of Amsterdam) ventured that by interpreting ‘consubstantial’ norms, i.e. internationalised (domestic) norms, national courts could in effect be seen as engaging in judicial dialogue on the interpretation of substantially equivalent international norms. It was moreover suggested that one may have to respect internal processes and allow for non-performance by some domestic actors as long as the state as a whole complies with its obligations.

This last point arguably underscores the need to not regard the state as a monolithic entity, but as a collection of actors which, through their relative strengths and interactions, determine whether, and to what extent, implementation occurs. This is the premise on which the Human Rights Law Implementation Project, a three-year (2015-2018) collaborative project between four leading academic human rights Centres (Bristol, Essex, Middlesex and Pretoria) and the Open Society Justice Initiative, seeks to examine the factors which impact on human rights law implementation by nine states across Europe, Africa and the Americas, looking at (i) selected decisions deriving from individual complaints to UN treaty bodies; and (ii) selected judgements and decisions of the bodies in the three regional human rights systems.

Concluding reflections: the notion of 'principled resistance'

Photo credit: University of Konstanz

Photo credit: University of Konstanz

During the concluding roundtable discussants inter alia reflected on the usefulness of the term ‘principled resistance’. While some argued the notion had proved capable of triggering an important debate, Professor Leach rejected the term because it risked normalising non-compliance (see also this recent blog post by Dr. Alice Donald). He ventured that one could not speak of ‘principled resistance’ and deny the politics behind such behaviour. Others agreed that the term ‘principled’ hinted at an ethical stance, although domestic actors’ intensions may be pragmatic or even opportunistic. Moreover, it was found difficult to make a distinction between ‘functional disobedience’ or ‘reasoned resistance’ and outright non-compliance.

The Conference made a valuable contribution to exploring the root causes of criticism against the ECtHR. It provided a forum for examining the reaction of the Strasbourg system, most notably the ECtHR itself, to the discernible ‘critical mood’. The discussions cumulated in a call upon both the Committee of Ministers and all States Parties to the Convention to use all the tools at their disposal to ensure effective implementation of Strasbourg Court judgments, and invited all relevant actors to stress the fundamental achievements of the Convention system (see this CoE study on the issue).

Reflections on the 2016 Annual Report of the Committee of Ministers on the Execution of ECtHR Judgments

Başak Çali, EIN President 

The Committee of Ministers published its 10th Annual Report on the Execution of the Judgments of the European Court of Human Rights (the Report) in March 2017. These annual publications are a crucial source of information for members of civil society and those researching human rights implementation in Europe. They give us, in particular, a comparative understanding of the state of implementation in two ways: 1) how the implementation record of all member States stands compared to previous years; 2) how member States’ implementation efforts stand in comparison to one and another.

These two dimensions are crucial for devising effective civil advocacy tactics that advocate for implementation of judgments. They are also a powerful way of scrutinising the effectiveness of the supervisory system for the execution of human rights judgments as a whole with the view to improvement. In contrast, the Report helps us less to understand how different fields of human rights judgment implementation compare and which thematic areas overall are subject to major delays in implementation. This gives us a lesser view of what all this means for the health of the Convention system of human rights protections as a whole. In what follows, I offer a review of the descriptive statistics to show: what this means for the state of implementation in 2016; what areas of concern exist; and how information provision can be improved in future reports.

Year 2016 in a comparative perspective

There are a number of positive signals in the Report with respect to absolute improvements in the number of ‘closed’ cases (cases that are deemed to be fully implemented by the Committee of Ministers). In particular, the number of non-implemented cases dropped just under the daunting figure of 10,000 to 9,944. It is also significant to note that the Committee of Ministers was also able to close a higher number of cases under enhanced supervision than in previous years, suggesting that placing cases under enhanced supervision could make a beneficial difference.

Beyond the improvements in the absolute number of cases closed, however, the statistics advise caution. New cases added to the docket of supervision increased from 1,285 to 1,352 in 2016. Given the significant increase in the caseload of the European Court of Human Rights in 2017 (in particular, from Turkey), the number of cases transmitted to the Committee of Ministers from the Court can only increase further this year and beyond. The number of leading cases that reveal systemic and structural problems and thus require long-term scrutiny have also not dropped in any significant manner. The Report notes a small drop to 1,493 in 2016 from 1,555 previously. The Report further notes a delay in payment of compensation in 2016, an area often hailed as one of the strongest areas of effective implementation.

An important area of concern for civil society in the years to come will be the fate of cases that are placed in standard supervision and the difference this makes to the speed of implementation and the level of scrutiny by the Committee of Ministers. In particular, given that States have been more responsive to implementing cases that are under enhanced supervision, the determination of when a case should be upgraded to this procedure and how civil society should provide input to this process will require important attention. In 2016, only 18 cases were transferred from standard to enhanced supervision out of the 5,950 standard supervision cases. A second area of concern is the Well-Established Case Law (WECL) track of cases, for which the European Court of Human Rights has started to deliver short judgments without any indication as to the kind of measures that need to be taken. From an implementation perspective, the fact that a case involves WECL does not offer any clues as to whether such cases should be subject to standard or enhanced supervision. There is therefore a risk of a lack of attention to what level of scrutiny a case requires for supervision of implementation when it falls under WECL.

Comparing the performance of States in 2016

Page 67 of the Report provides absolute data comparing States’ performance in terms of the number of cases pending for implementation both under standard and enhanced supervision over five or more years. As the Report highlights, and we at the European Implementation Network (EIN) would agree, the implementation of judgments takes time. The particulars of a case and the complexity of the measures that need to be implemented are all relevant considerations in assessing the reasonableness of the steps taken by States over time.

However, cases that are pending for five or more years are cause for special concern. In absolute terms, Russia, Turkey, Ukraine, Moldova, Bulgaria, Croatia, Greece, Italy, Hungary and Azerbaijan are the top 10 countries with standard supervision cases pending for five or more years. In enhanced supervision, the ranking is not dissimilar. Russia, Turkey, Ukraine, Moldova, Bulgaria, Italy, Azerbaijan, Romania, Greece and Serbia have the highest number of enhanced cases pending for implementation for five or more years. Future Reports need, however, to provide the number of pending cases for five or more years both in terms of the percentage of those cases and their thematic coverage. For example, looking at the statistics provided, we do not get a clear understanding of why some cases take over five years to implement or whether there are discerning patterns for this degree of delayed implementation.

What is missing in the Report? A comprehensive thematic approach to human rights judgment implementation

The Report successfully presents a picture of the state of implementation with regard to absolute improvements in numbers and over time. What the Report does not explain, however, is what the level of implementation as a whole means for the health of the Convention system, and the core human rights values it stands for. The only related information in this regard about the types of cases facing implementation challenges is on page 63 under the title of ‘main themes under enhanced supervision’. Here we see the respective percentages under the themes: actions of security forces; conditions of detention - medical care; lawfulness of detention and related issues; right to life - protection against ill-treatment: specific situations; length of judicial proceedings; execution of domestic judicial decisions; other interferences with property rights; home / private and family life; lawfulness of expulsion or extradition; and freedom of assembly and association. However, 22 per cent of cases under enhanced supervision are shown as ‘other.’

This presentation does offer us some clues as to the thematic areas where implementation challenges or indifference are most concentrated in any given year. It does not, however, offer an account of which thematic areas have proven harder to implement over time. Undoubtedly, given the range of human rights issues that are brought forward by the European Court of Human Rights cases, it is difficult to present a comprehensive thematic view of where the most significant challenges of implementation lie. Future Annual reports may be able to overcome this problem by identifying which thematic areas remain unimplemented for five or more years. What is more, a comprehensive thematic reporting can enable us to see how a multiple number of States are faring on the same human rights issue, be it lawfulness of expulsion or extradition or domestic violence.

Linking delays, challenges and push-backs in implementation with thematic areas would allow more concerted effort not only on the part of civil society, but also on the part of Committee of Ministers and the Council of Europe organs. Human rights implementation is more than absolute number of cases closed.

The role of civil society in the implementation process

The Report notes the establishment of EIN and recognises the important role of civil society in facilitating implementation and acting as a public watchdog to monitor cases of non-implementation and under-implementation. The Committee of Ministers now publicises the cases that it will review in its quarterly sessions ahead of time. This is an important window of opportunity for civil society to offer critical input. EIN will continue to monitor these cases and enable domestic NGOs to offer meaningful input through quarterly briefings. In gearing up to the final stocktaking of the “Interlaken-Izmir-Brighton-Brussels Process” in 2019, EIN will also continue to monitor the effectiveness of the supervision system and promote increased NGO input into the system.

Compared to 2015, the Report notes that NGO interventions under Rule 9 increased from 80 in 2015 to 90 in 2016. Considering the number of cases that need to be implemented hovers around 10,000, this figure can clearly be improved. EIN will thus seek to realise this objective and also focus on the content of the Rule 9 Submissions of our Network members in 2017 and beyond.